Averil Power (Fianna Fail) | Oireachtas source

I thank all of our guests for their initial contributions. I welcome the Bill. I commend the Minister, Deputy Burton, on being the first Minister to introduce legislation in this area. It is important to acknowledge that before we begin to critique the Bill.

I concur with the concern expressed by Deputy Ó Snodaigh about a number of provisions in the Bill. All transgender people should be entitled to legal protection regardless of their age or marital status or whether they are in a civil partnership. We are coming to the issue at a late stage compared to other European countries and we have an opportunity to learn from their experiences and get it right. We can start with best practice rather than starting where countries were ten years or 20 years ago. The witnesses have eloquently outlined that the lack of protection for young people has a huge impact. This committee is responsible for both social protection and education. It is difficult to hear about the day-to-day obstacles young people have experienced in schools, which must have an impact on their education. That is something we as a committee cannot ignore. For me, it is a strong argument for adopting the changes that have been proposed by the Ombudsman for Children.

The main area about which I wish to ask questions is the forced divorce requirement. I will put them to the Department as its representatives are only present for this initial session. Some couples perhaps do not survive the gender transition and go their separate ways, but many others stay together. Other countries have taken a different route. Challenges have resulted in cases being heard by the European Court of Human Rights and in some countries forced divorce requirements have been struck down. Two main issues arise. As TENI pointed out in some of its correspondence, there is a very good chance legally that if a couple has survived the process of transition and both parties are happy to stay together, a court might decide that they do not satisfy the criteria for divorce because they could not be considered to be totally irreconcilable if they want to stay together and keep their family together. Therefore, there is a risk in that regard. If divorce does apply and people are able to get one, it is problematic to force a family to split up. The Department’s spokesperson, Simonetta Ryan, referred briefly to the constitutional context as the reason for the requirement. I would welcome more details on that. If anything, there is a constitutional context for protecting the family, which is strongly protected in the Constitution, as is marriage. The proposed approach could be constitutionally problematic. I have read persuasive legal opinion that to force a family to break up would be tantamount to an external group imposing divorce on a family.

Based on the work that has been done by Fergus Ryan in particular, who wrote a very good article on the matter, such a provision could be legally unnecessary because in Irish family law in general the validity of a marriage is based on the status of the people at the time they enter into it. The issue is whether one was capable of entering at that time into a valid marriage. It is arguable on that basis that it is legally unnecessary to force people to divorce many years later if at the time they got married they were capable of contracting a marriage. Putting aside the issue of marriage equality, which I hope will be dealt with in the near future, even before any of that is examined it is unnecessary if the marriage was valid at the time it was contracted.

Will the Department share its legal advice with us? It is not good enough to say there is a constitutional context. We really need to see the meat of the advice because all of us as Members want to do the right thing legally in the sense that when we pass legislation we want it to be able to stand up to scrutiny in the courts. We must have the information in order to judge the issue properly. Contrasting opinions have been put forward by Fergus Ryan and FLAC. There is a letter from the Council of Europe Commissioner for Human Rights to the Minister for Social Protection, Deputy Burton, on the ECHR context of all of this. It is a big legal issue and for us to discuss it meaningfully as a committee we should all be working off the same information. I therefore make that request to the Department in particular.